Criminal law - Application for leave to appeal against sentence - Importing a marketable quantity of heroin - Manifest excess - Parity

Govindaraju v The Queen [2011] NSWCCA 255

Kuti v The Queen [2012] NSWCCA 43

Lindsay v The Queen [2012] NSWCCA 124

MGM v The State of Western Australia [2012] WASCA 24

Morcom v The State of Western Australia [2013] WASCA 31

R v Nikolovska [2010] NSWCCA 169; (2010) 209 A Crim R 218

Thuong Nguyen v The Queen [2012] NSWCCA 184

Wilson v The State of Western Australia [2010] WASCA 82

Younan v The Queen [2012] NSWCCA 155

1 MAZZA JA: This is an application for leave to appeal against sentence. The appeal notice was filed three days out of time. I would grant an extension of time.

2 The appellant and her co-accused, Van Tong Lam and Thi Nhanh Le, were convicted after a trial by jury of importing a marketable quantity of heroin contrary to s 307.2(1) of the Criminal Code (Cth). At the time of the offending, the maximum penalty for this offence was 25 years' imprisonment or a fine of $550,000 or both.

3 The learned trial judge made the following findings of fact which are not challenged in this appeal. Mr Lam and Mrs Le are a married couple who came to Australia from Vietnam in 1982. The appellant is also from Vietnam and is an acquaintance of Mr Lam and Mrs Le. She arrived in Australia in 1997. As the learned sentencing judge put it, the appellant was used by Mr Lam and Mrs Le as 'a post box to receive the drug package on their behalf'.

4 On or about 20 June 2011, Mr Lam despatched from Ho Chi Min City a package addressed to the appellant. Inside the package was a golden Buddha statue. On 22 June 2011, an employee of the Australian Customs and Border Protection Service came across the package and ascertained that it contained heroin. The Australian Federal Police were notified and a controlled delivery of the package to the appellant occurred the following day.

5 The appellant willingly received delivery of the package shortly after 11.00 am on 23 June 2011.

6 A few hours later, the Australian Federal Police executed a search warrant and found the unopened package in the laundry.

7 During the execution of the search warrant, the appellant falsely claimed that she was willing to assist the investigating officers in any way possible. She falsely told the investigating officers that she had been asked by a lady in a shop, known only as Tu, if she would be prepared to receive a package for Tu's daughter, who was a student. The appellant told the investigating officers that Tu had said that she did not want to send the package to her daughter because 'the teacher would eat all "the apple pie up"'.

8 Inquiries revealed that during the execution of the search warrant on 23 June 2011, Mrs Le made several unsuccessful attempts to contact the appellant.

9 Analysis of the substance contained in the Buddha revealed that it was 233.7 g of pure heroin.

10 His Honour found that Mr Lam and Mrs Le organised and arranged for the drugs to be acquired and posted to the appellant, 'who was a willing participant in the enterprise'. His Honour made no finding as to the ownership of the heroin. He said that he did not know what consideration the appellant was going to receive for her participation.

11 His Honour regarded Mr Lam and Mrs Le as the main instigators of the offence. He found that they acted in concert with each other at all material times. However, he regarded Mr Lam's criminality as greater than his wife's because of the actions he had taken in Vietnam to post the package to Australia. It is clear enough that his Honour regarded the appellant as less culpable than either of Mr Lam or Mrs Le.

12 Mr Lam was sentenced to 7 years' imprisonment with a non-parole period of 6 years, backdated to commence from 19 February 2013, the day on which he was convicted. Mrs Le was sentenced to 6 years and 6 months' imprisonment with a non-parole period of 5 years, backdated to commence on 19 February 2013. The appellant was sentenced to 5 years' imprisonment with a minimum term of 3 years 4 months, to commence on 26 April 2013.

13 At the time he was sentenced, Mr Lam was 59 years of age. He was not a user of prohibited drugs and he had no prior convictions. Since his arrival in Australia, he had worked as a market gardener. His Honour inferred that it was likely that his motivation for committing the offence was 'financial greed' (ts 1004).

14 Mrs Le was 55 years of age at the time she was sentenced. Like her husband, she was not a user of prohibited drugs, and the information before the court was that she had no prior criminal history. His Honour inferred that she too was likely to have committed the offence for 'financial reasons'.

The personal circumstances of the appellant

15 The appellant was almost 57 years of age at the date of sentencing. She came to Australia in 1997 on a tourist visa. She married in that year and became a permanent resident in December 1998. She then became ill in 2002, and her marriage dissolved in 2003. She then returned to Vietnam, but came back to Australia due to her health.

16 The appellant has a number of health issues which his Honour found could be managed in prison. More significantly, she has lost most of her vision. A medical report tendered during the sentencing proceedings was to the effect that the appellant is legally blind (ts 1004).

17 The appellant has never used illicit substances or consumed alcohol. She has no family in Perth and limited social support. As with her co-accused, his Honour inferred that the appellant's participation in the offence was likely to have been for financial gain (ts 1005).

18 The appellant raises two grounds of appeal. Ground 1 alleges that his Honour failed 'to give sufficient discounts' for a number of claimed mitigating factors, being:

1. the appellant's prior good antecedents and age;
2. the appellant's role in the offending;
3. that the appellant had been used as a 'post box';
4. the appellant's ill health;
5. the appellant's disability; and
6. the additional hardship that would be suffered by the appellant in a custodial environment as a result of blindness, ill health and poor comprehension of English.

19 Ground 2 alleges that the sentence imposed upon the appellant breached the parity principle in that there was insufficient disparity between the appellant, on the one hand, and her co-offenders, on the other.

20 The principles upon which this appeal must be determined are well-known and uncontroversial. They were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated here.

21 Section 27(1) of the Criminal Appeals Act 2004 (WA) provides that the leave of the court is required for each ground of appeal. Leave cannot be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding: s 27(2). Unless the court gives leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed: s 27(3).

22 In truth, proposed ground 1 is not a valid ground of appeal. The 'ground' alleges no more than a series of weighting errors. This court has said time and again that a failure to give adequate weight or pay sufficient regard to a relevant sentencing consideration only gives rise to an appellable error if it amounts to a failure to exercise the discretion entrusted to the court. In the absence of a failure to exercise the discretion, a weighting error is not an independent ground which itself justifies appellate intervention. Rather, it is a conclusion that is implicit in and flows from, a finding that a sentence is manifestly excessive: Morcom v The State of Western Australia [2013] WASCA 31 [33].

23 In the present case, there has been no failure by the learned sentencing judge to take into account any of the matters said by the appellant to be mitigating.

24 I will treat the ground as alleging that the sentence imposed upon the appellant was manifestly excessive.

25 Whether or not a sentence is manifestly excessive falls to be decided having regard to the maximum sentence for the offence, the standards of sentencing customarily imposed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.

26 I have already noted the maximum penalty for the offence of importing heroin (a border controlled drug) into Australia.

27 The written submissions relied upon by the appellant did not refer to any comparable cases concerning s 307.2(1) of the Criminal Code (Cth). Instead, the appellant relied on a number of sentencing decisions concerning breaches of the Misuse of Drugs Act 1981 (WA). In the interests of ensuring systematic fairness and consistency in Federal sentencing, this court should have been referred to cases decided under Federal law.

28 At the hearing of this application, the appellant was given leave to file a table of comparable Federal sentencing decisions. On 22 August 2013, the table was filed. Unfortunately, the table provided this court with little assistance. Of the 22 cases cited, eight were first instance sentences. The rest were decisions of this court and its predecessor, the Court of Criminal Appeal. Those cases are listed in a schedule to these reasons. None are relevantly comparable to the present case. While the pure weight of a drug is not the sole focus in analysing sentencing cases, it is an important matter. All the cases referred to by the appellant involved larger and, in many cases, much larger quantities of drugs when compared to the present case. The sentences imposed in those cases reflect this fact and are, understandably, longer than the sentence imposed upon the appellant.

29 I have had regard to the recent cases of Govindaraju v The Queen [2011] NSWCCA 255 and R v Nikolovska [2010] NSWCCA 169; (2010) 209 A Crim R 218 and the cases referred to therein. Acknowledging that each case must be decided on its own facts and that the outcomes in other cases are of limited use, the sentence imposed upon the appellant in this case is broadly consistent with the sentences imposed in comparable cases. It might even be said that the sentence imposed in this case, bearing in mind that it was imposed after trial, was lenient.

30 Although the appellant was not the principal offender and her role was to take delivery of the package and later hand it to her co-offenders or someone else on behalf of her co-offenders, her role was nevertheless significant. The appellant knowingly assisted her co-offenders in the importation of a significant amount of a highly dangerous illicit drug. It cannot be said that the appellant's role was minor or insignificant. The appellant's likely motivation was entirely financial.

31 The appellant's antecedents were favourable. Her blindness is a matter of relevance and, it may be assumed, will make imprisonment more arduous. However, the dominant sentencing considerations in cases of drug importation of the kind seen in this case are punishment and deterrence. Accordingly, matters personal to an offender, while not to be ignored, carry less weight.

32 In all of the circumstances, it is not reasonably arguable that the sentence imposed upon the appellant was manifestly excessive. I would not grant leave to appeal in respect of proposed ground 1.

33 The appellant submits that there is insufficient disparity between the sentence imposed upon her and the sentences imposed upon her co-offenders.

34 In MGM v The State of Western Australia [2012] WASCA 24, I said this about the parity principle (McLure P and Buss JA agreeing):

The parity principle is founded on the norm of equal justice: Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).

The concept of equal justice does not equal mathematical precision. What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done. The fact that an appellant feels a sense of grievance is not determinative: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).

Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders. This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents: D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J) [41] - [43].

35 While I acknowledge that there was a significant difference in the culpability of the appellant and her two co-offenders, it must also be recognised that there was a significant difference between the sentences

imposed upon the appellant, on the one hand, and her two co-offenders on the other.

36 A disparity of 2 years' imprisonment in respect of the co-offender Lam and 1 year 6 months' imprisonment with respect to the co-offender Le was, in my opinion, a fair reflection of the differences between their levels of culpability and could not give rise to an objectively justifiable sense of grievance on the part of the appellant.

37 Ground 2 has no reasonable prospect of succeeding.

38 Neither proposed ground of appeal has a reasonable prospect of succeeding. Accordingly the appeal must be taken to have been dismissed. I would make the following orders:

1. Leave to appeal on grounds 1 and 2 is refused.
2. The appeal is dismissed.

39 HALL J: I agree with Mazza JA that leave to appeal on grounds 1 and 2 should be refused and the appeal dismissed.

40 I have considered a number of other recent cases involving appeals against sentences imposed for importing a marketable quantity of either heroin or cocaine. They are Kuti v The Queen [2012] NSWCCA 43; Lindsay v The Queen [2012] NSWCCA 124; Younan v The Queen [2012] NSWCCA 155 and Thuong Nguyen v The Queen [2012] NSWCCA 184. Those cases lend further support to the conclusion that the sentence imposed on the appellant is consistent with sentences imposed in comparable cases and, indeed, could be viewed as being lenient.

Diefenbach v The Queen [1999] WASCA 4

Punevski v The Queen [2000] WASCA 397

Ruvinovski v The Queen [2000] WASCA 398

Chua v The Queen [2001] WASCA 353

Wong v The Queen [2001] WASCA 32

Grimwood v The Queen [2002] WASCA 135

Mustafa v The Queen [2002] WASCA 357

Parry v The Queen [2003] WASCA 222

Tan v The Queen [2003] WASCA 324

R v "B" [2004] WASCA 1

Mohlasedi v The Queen [2006] WASCA 267

Iyoha v The Queen [2011] WASCA 46

Medan v The Queen [2011] WASCA 142